Education Matters: The question of ballot language legality, Part 2

Marsha Sutton

Two letters sent to Michael Vu, registrar for the San Diego County Registrar of Voters, from a number of individuals both locally and statewide claimed several county school districts violated election and education code laws in the Nov. 6, 2018 election.

All parties agree that school districts are responsible for providing ballot statements that conform to the law. But opinions differ on what to do if the language submitted is non-conforming.

The first letter, dated July 30, 2018, cited specific offenses and claimed that the registrar has an obligation to reject ballot statements that violate the law.

Michael Vu disagreed, saying the role of his office is to act as facilitators contracted to conduct elections and is not responsible for reviewing ballot language submitted to them by other governing bodies.

“We administratively handle the elections for other political entities,” he said. “We facilitate that election for them.”

He said the complainants should work with school districts at their public meetings before ballot language is submitted.

School district superintendents from Del Mar Union and Carlsbad Unified, two districts named as having non-conforming ballot statements, said their ballot language was reviewed and approved at public meetings.

Del Mar’s Holly McClurg said the ballot language and resolution calling for an election were approved at a public school board meeting held Aug. 6, and bond counsel and financial advisors were consulted.

Carlsbad’s Ben Churchill said his district’s bond language was approved at a public school board meeting held July 18 and was written by the district’s bond counsel.

Both said their ballot statements were printed in the voter ballots exactly as submitted.

Vu said another opportunity exists for the public to present a legal challenge by taking their objections to court.

This is the 10-day review period that begins after the deadline for the registrar to receive all bond measure language from governing agencies. At that time, challenges can be made before sample ballots are printed, he said.

Because the deadline for the past Nov. 6 election was Aug. 10 (88 days before the election), the 10-day review period began after the July 30 letter was sent.

The second letter, dated Nov. 28, 2018, asked the registrar not to certify election results for bond measures that used non-conforming ballot statements, even though the letter was sent well after the 10-day review period and after the election.

Vu, in an interview, said, “There is a legal obligation to certify the election within 30 days of the election. So unless some lawsuit barred me from certifying the election, I need to follow the law.”

All election results were certified.

A statement on the Registrar of Voters website reads, “The San Diego County Registrar of Voters is NOT an enforcement agency and is therefore unable to investigate any violations.”

Referring to Elections Code 9190, Vu said the courts would decide if there’s clear and convincing evidence of non-compliance with the law and would determine the legality of the matter.

No complaint

“These people don’t have a complaint,” said San Diego attorney Robert Ottilie.

Ottilie said it’s not the registrar’s job to ensure that governing bodies follow the law. That obligation, he said, falls to the governing bodies – in this case, the school boards.

Because school boards are public entities, ballot language must be approved at a public meeting, he said, at which time the public has an opportunity to weigh in and have an impact when the language is being proposed.

Once ballot statements have been submitted, complainants have a second chance to object during the 10-day review period.

Registrars have some discretion but they don’t need to exercise it, Ottilie said, “because the legislature has created the mechanism to address this and to address it prior to the election.”

If there’s a legitimate complaint about ballot language, there’s a process set up to correct the errors before the voting has happened, not after it’s all played out, he said.

“It sure is going to be a mess if we wait until after the fact,” he said.

The same principle applies to objections received before the 10-day period of time.

The signers of the July 30 letter clearly believed that there were potential problems, Ottilie said, “but then the statutory period comes along in a few weeks and they do nothing.”

“They’re the ones who didn’t meet their obligation,” he said. “The supervisors can’t do anything. Vu’s going to argue that he can’t do anything.”

Laches defense

If a lawsuit is filed any time outside the 10-day period, which would apply to both the July 30 and the Nov. 28 letters, Ottilie said it would be rejected on the laches defense.

The formal definition of the laches defense is “undue delay in asserting a legal right or privilege” – the theory being “the law shouldn’t aid those who ‘sleep on their rights.’ Put another way, failure to assert one’s rights in a timely manner can result in a claim being barred by laches.”

“If you sit on your hands and you don’t challenge during the statutory period that’s been created just for your benefit by the state legislature … it’s thrown out of court,” Ottilie said.

This is the purpose of laches, he said, and the legislature provided a remedy by setting aside 10 days when objections can be made in court.

“Even though we created a remedy just for [them] to fix things, the issue isn’t whose job it is to fix it,” Ottilie said. “It was their job to fix it. If you want to do anything about it, here’s when you do it.”

This system for redress was created for any registered voter “to go into court on an expedited basis and have a determination made by a judge,” said Ottilie, noting that the courts will accommodate those challenges “because they prioritize election cases.”

An elected body is not going to include intentional falsehoods, he said. But once governing bodies decide to pursue a bond measure, they will try to write the language to increase support, he acknowledged.

“Some of these are difficult calls,” Ottilie said. “How’s Michael Vu supposed to resolve [these claims]? There’s a process in court for that.”

The responsibility for fixing disputed ballot language is with the offended voter, and it’s no one’s obligation to correct mistakes except the public’s, he said.

Obvious error

One objection that Ottilie said Vu could have fixed was the Measure YY ballot question submitted by San Diego Unified School District that exceeded the 75-word limit.

“Absolutely I’ve seen the registrar cut words,” Ottilie said. “On the word count they should have done that. Either he just missed it or decided not to do what he should have done.”

When asked if the complainants could go back and claim the election shouldn’t be certified because the district exceeded the word limit, Ottilie said, “It’s not gonna happen.”

It’s quite likely that the letters lodged legitimate objections that a court may have found reasonable.

One egregious example is the violation of the introductory statements made on ballot questions which are clearly not impartial.

The worst offender is SD Unified’s introductory title to Measure YY: “San Diego Neighborhood School Repair and Student Safety Measure to Improve Neighborhood and Charter Schools.”